Roberts

Action to foreclose a mortgage. Defendants demurred to the complaint on the ground that the action was .barred by the statute of limitations. (Code Civ. Proc., secs. 336, *483 339, 343.) The demurrers were overruled, and defendants failing to answer, their default was duly entered and judgment passed for plaintiff, from which defendant Wells appeals on the judgment-roll alone.

It appears from the complaint that defendant Fitzallen executed his note and mortgage to one L. F. Davis, August 23, 1889; the note was made payable three years from date, “together with .a counsel fee of fifty dollars due upon filing complaint on said note”; the note was indorsed by defendant Isham as guarantor. On April 14, 1890, Fitzallen, the mortgag^ sold the mortgaged premises to defendant Wells, who, “as part consideration and as a part of the purchase price of said real estate, assumed and undertook the payment of said mortgage”; that the said assumption was expressed in the body of the deed by said Fitzallen to said Wells in the following words: “The grantee assumes and agrees to pay a mortgage of date August 23, 1889, to one L. F. Davis, ■and recorded,” etc.,' being the mortgage in suit.- As part…